J-1 Visa - Getting Married with 2 year rule

[rcorbe1 0]

my girlfriend is here on a J-1 Visa with two year rule due to being on the "skills list" for English. She's an Au Pair from El Salvador and came here to take some english classes and work. We are getting married on 10/17 and her Visa expires on 10/31. Her program was paid for by her family and the host family in America, it wasn't funded by US or El Salvador. I'm just wondering what steps we should take to keep her here in America. Should we ask for an advisory opinion? We were thinking of applying for a "no obligation waiver" if the 2 year rule does in fact still apply to her. Is getting approved for this type of waiver near impossible? I'm trying to figure out what to do first, contact her Embassy or ask for the advisory opinion? I'm just really lost and didn't see the two year rule until she showed me her Visa last week....Any help would be greatly appreciated!!

Edited October 15, 2014 by rcorbe1

[Ian H. 207]

Does her visa have a notation that says she is exempt from the 2 year rule?

[rcorbe1 0]

her visa says is subject to section 212 E two year rule does apply. her DS-2019, she has three from two AU pair family sponsors, the very first one she received says The exchange visitor in the above program is suject to two year rule based on "the exchange visitor skills list". She took english classes as part of the program. Her last two DS-2019 forms do not have the two year rule checked off.

[jxn 86]

You just described my exact situation. My wife was an au pair from El Salvador on a J-1 and her forms indicated the two-year rule did apply.

Our lawyer knew it didn't due to no funding from either government, and when we were engaged he filed for an advisory opinion letter from DHS that confirmed the rule did not apply.

We proceeded to get married and are in the final stages of AoS, with our interview for her conditional two-year green card scheduled for next month.

Our case was straightforward and we received no RFEs. We just had a long wait (it will have been over ten months by the time the green card is in hand).

Good luck.

[rcorbe1 0]

Great, thanks! So going for the advisory opinion is probably the route we should take first instead of contacting her Embassy? That's what I'm thinking we need to do. Her Visa will expire soon but she plans on staying until we get this worked out.

Edited October 15, 2014 by rcorbe1

[Ian H. 207]

Hi,

I'm not all too familiar with the J1 visa, but it looks like if it wasn't funded by either government or any international organization that received funding from either government, then she isn't subject to the 2 year requirement. That said, I agree with the other poster and your best route would be to get an advisory opinion. It is better to get the confirmation from them so that you can submit with the AOS package. I will post a link with info. Good luck.

http://travel.state.gov/content/visas/english/study-exchange/student/residency-waiver.html

By the way, it's very frustrating that they put the incorrect thing on the visa because if they aren't subject to the 2 years, why put it on the visa?!

[jxn 86]

By the way, it's very frustrating that they put the incorrect thing on the visa because if they aren't subject to the 2 years, why put it on the visa?!

Exactly. I'm pretty sure the opinion letter is required as proof that the two-year rule note on the visa/forms was done in error, otherwise your case won't go through and will be rejected.

Our immigration lawyer said it was very routine for his J-1 clients and he mailed off a brief letter essentially saying "[Name] plans to marry soon and continue her life in the U.S. In light of the fact that neither government provided funding and her good standing with the law, can you confirm that the two-year rule does not apply to her?"

Beforehand, my wife also got a letter from the au pair agency stating that no government funding is involved, which probably sped up the research process for DHS. The au pair agency actually had it on a boilerplate letter, as it's common to fall in love when living here for a few years.

Once your AoS application is received, your fiancée is in a period of authorized stay pending the USCIS decision. Overstay is forgiven with marriage to a USC. Once authorized stay has run out, or you are in the middle of AoS, she should not leave the country. She can get AP during the AoS (it's free to apply for if filed concurrently), but many people advise holding off on non-essential travel during AoS even with AP.

I didn't research this too heavily since our immigration lawyer is very well-versed in this, but I don't think you can successfully apply for her AoS until you have that letter from DHS stating that the rule does not apply. I too was pretty shocked at how much of a difference a few erroneously-checked boxes on some forms can make, and this will obviously add to your overall timeline.

Good luck!

Edited October 15, 2014 by jxn

[jan22 2,898]

A point of clarification -- the two year rule is not limited just to those for whom a government provided funding. The J-1 is, basically, an exchange program visa; the recipient is generally expected to take what they have learned about the culture and systems of the US back to their home country to share. There is a reference in another post here on another reason why the two year requirement can apply-- the "skills list". This is a list of fields of specialized knowledge and skills that are needed in the J-1's country of last permanent residence for its development. For some countries, that is basically anything the person does -- learning English may well be one of them and the rule would apply regardless of the source of funds for the J-1. The skills list is country-specific. You can review it in the link below (FYI, it says it's a 2009 list, but that's the most recent -- it hasn't been updated since then.) Not saying this will definitely apply to your case, but many people assume that if there is no government funding, then there is no way the two-year rule can apply, and that's not right.

From the Bureau of Consular Affairs information on J-1 visas (http://travel.state.gov/content/visas/english/study-exchange/exchange.html):

Two-year Home-country Physical Presence Requirement Conditions - An exchange visitor is subject to the two-year home-country physical presence requirement if the following conditions exist:

• Government funded exchange program - The program in which the exchange visitor was participating was financed in whole or in part directly or indirectly by the U.S. government or the government of the exchange visitor's nationality or last residence;

• Graduate medical education or training - The exchange visitor entered the United States to receive graduate medical education or training;

• Specialized knowledge or skill: Skills List - The exchange visitor is a national or permanent resident of a country which has deemed the field of specialized knowledge or skill necessary to the development of the country, as shown on the Exchange Visitor Skills List. Review the Exchange Visitor Skills List 2009.

[rcorbe1 0]

She is on the skills list for El Salvador, she came here and took english classes part time. What do you think about the "no obligation" waiver? do you think it's a long shot if we are getting married? I'm really confused on the process for getting the waiver. We called the embassy today in DC and they didn't seem like much help.

[jan22 2,898]

Sorry -- I don't have any direct knowledge of El Salvador's approval of waivers (the Salvadoran government has to agree to the waiver before the US will even consider approving it). Hopefully, someone on the forum will have some idea and respond. Bottom line -- you have nothing to lose by applying for a waiver since it can't be approved if you don't apply for it! Good luck!

[rcorbe1 0]

thanks all! my biggest worry now is the fact that she will be overstaying her visa now as we wait for the results of the advisory opinion and possible waiver stuff to go through if we get to that point. hopefully they will looks past the expired visa since we are marrying and she entered the US legally, this is the part I'm sort of confused about and hoping it doesn't create many issues.....i've heard two different sides to this story, keep her here or send her back....ugh!

[jxn 86]

Overstay is forgiven with marriage to a USC. Once her visa expires, she will be out of status, and she will go back into status once you submit the AoS application and receive the NoA.